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ADMINISTRATIVE LAW - Employment and workplace relations - mutual recognition of occupations under the Mutual Recognition Act 1992 (MRA) - whether mutual recognition sought by the Applicant in New South Wales of licence issued in Victoria under the Private Security Act 2004 (Vic) is prevented by reason of earlier cancellation of equivalent New South Wales licence issued under the Security Industry Act 1997 (NSW) - consequences of a State exercising disciplinary powers under local legislation - operation of s 33 Disciplinary action of the MRA - meaning of the expression "is not cancelled" under s 19(2)(e) of the MRA - whether a cancellation expires by effluxion of time for the purpose of s 19(2)(e) of the MRA - where the concept of "functus officio" applies in the context of cancellation in determining whether a licence "is not cancelled" the purpose of the MRA - whether mutual recognition can be obtained where registration cancelled in any State - circumstances in which cancellation ceases to have effect for the purpose of the MRA - cancellation in New South Wales operates to prevent recognition under the MRA unless a new licence is subsequently issued in New South Wales

Administrative Review Tribunal Act 2024 (Cth)

Child Protection (Offenders Registration) Act 2000 (NSW)

Constitution (Cth)

Crimes Act 1914 (Cth)

Criminal Records Act 1991 (NSW)

Mutual Recognition Act 1992 (Cth)

Private Security Act 2004 (Vic)

Security Industry Act 1997 (NSW)

CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2023] WASCA 1

Constantin v Commissioner of Police (NSW) 2022 AATA 1333 (

Constantin v Commissioner of Police (NSW) [2024] AATA 1294

Dib v Commissioner of Police (NSW) [2017] AATA 852

Victorian Building Authority v Andriotis 268 CLR 168; [2019] HCA 22

Victorian Building Authority v Cau [2023] FCAFC 120

Re Petroulias [2005] 1 Qd R 643; [2004] QCA 261

1. These reasons relate to an application for review of a decision of the Commissioner of Police, New South Wales Police Force (Respondent) refusing an application by Mr Kiflemarian Teklom (Applicant) for registration of a security licence under the Mutual Recognition Act 1992 (Cth) (MRA).
2. For the reasons that follow, I have decided to affirm the decision under review.

1. In general terms, the MRA permits a person registered to carry out an occupation in one State to have that registration recognised in another State where the circumstances prescribed in the MRA are met.
2. The Applicant holds a class 1AE security operator license (Victorian licence) under the Private Security Act 2004 (Vic) (PSA). The Victorian licence was issued on 27 July 2024. It is the licence for which recognition is sought in New South Wales.
3. The Applicant previously held a class 1ABC security operator license (2005 NSW licence) issued in New South Wales under the Security Industry Act 1997 (NSW) (SIA). This licence was issued on 27 November 2005.
4. The 2005 NSW licence was revoked on 12 June 2008.
5. In its decision to revoke the 2005 NSW licence, the Respondent was satisfied the Applicant had been "found guilty (but with no conviction being recorded) of a prescribed offence of stalking and intimidation. Consequently, by reason of the operation of s 26(1A) and s 16(1)(b) of the SIA and clause 18(1)(b) of the Security Industry Regulation 2007 (NSW) (SIR), the Respondent was required to revoke the 2005 NSW security licence.
6. On 17 October 2024, the application for recognition in respect of the Victorian licence was lodged with the Respondent (Notice). The Notice included a statement required under s 19 of the MRA.
7. In the Notice, the Applicant ticked the box "TRUE" in answer to the following statement:

No license I hold or have previously held in any Australian state or territory or in New Zealand (including interim deemed registration and automatic deemed registration) have been cancelled or are currently suspended as a result of disciplinary action.

8. I note at this point that the Applicant explained to the Tribunal that at the time the application for mutual recognition was made, the relevant police check did not record the fact of the earlier finding of guilt upon which the 2008 decision to revoke his 2005 NSW licence was made. This is consistent with such records not recording any a finding of guilt by reason of the provisions in the Criminal Records Act 1991 (NSW) (Criminal Records Act) and/or the Crimes Act 1914 (Cth) (Commonwealth Crimes Act) relating to what I will refer to as "spent" convictions.
9. By notice dated 20 November 2024, the Respondent decided to refuse the application for recognition (Decision). The respondent subsequently provided to the Tribunal a statement of reasons (Respondent's reasons).
10. The Decision included the following statement regarding the ground for refusal:

I am satisfied that a previous security licence held by you in NSW has been revoked. > > Section 19(2)(e) of the Mutual Recognition Act 1992 (Commonwealth), states the notice (i.e., your application) "must state that the person's registration in any state is not cancelled or currently suspended as a result of disciplinary action." > > As your previous NSW security licence was revoked in 2008, you cannot satisfy the requirements under section 19(2)(e) of the CAT Act. Subsequently (sic), I am satisfied that the revocation of your NSW security licence prohibited you from being eligible for a licence under Mutual Recognition principles.

11. By application lodged 29 November 2024 (review application), the Applicant applied to the Tribunal to review the Decision.
12. The essential question in the review application is whether revocation of the 2005 NSW licence operates to prevent mutual recognition under the MRA of the Victorian licence in New South Wales. Sub issues include:

(a) whether the decision in Re Petroulias[1] is correct and should be followed. In particular, whether the reasons of de Jersey CJ at [19], where the Chief Justice said "the notice did not accord with s 19, and the notice was consequently not apt to crystallise the entitlement to registration", meant that the application for mutual recognition must be refused;

(b) whether, by reason of various legislation dealing with "spent" convictions, the revocation of the 2005 licence can be taken into account for the purpose of s 19(2)(e) of the MRA;

(c) whether the expression "is not cancelled or currently suspended" used in s 19(2)(e) of the MRA "indicates that it is a person's current (or latest) registration that must not be cancelled or suspended";[2]

(d) whether, because the 2005 licence would by now have expired (if not revoked in 2008), its revocation should be disregarded for the purpose of s 19(2)(e) of the MRA. More particularly, whether the decisions in Constantin v Commissioner of Police (NSW) 2022 AATA 1333[3] (Constantin 2022) and Constantin v Commissioner of Police (NSW) [2024] AATA 1294[4] (Constantin 2024) were correct in concluding a licence which has been revoked but which, but for that revocation, would otherwise have expired by effluxion of time, is an "authorisation [that] is functus officio".

1. The review application was heard by the Tribunal on 7 July 2025.
2. For the purpose of the hearing the Tribunal was provided with a bundle of documents entitled Joint Hearing Book (agreed bundle/AB).
3. The agreed bundle contains:

(a) the Applicant's original application for mutual recognition and attachments thereto; > > (b) the Decision > > (c) the Respondent's reasons; > > (d) the application to the Tribunal, > > (e) the Respondents outline of submissions (Respondent's submissions/RS).

4. The Tribunal had made directions to permit the Applicant to file and serve any evidence and submissions in support of his position. However, the Applicant did not provide any further material to the Tribunal.
5. At the hearing, the Applicant was permitted an opportunity to provide further information to the Tribunal including submissions in support of his position. While the Applicant had informed the Tribunal he needed the assistance of an interpreter, ultimately the interpreter the Tribunal had arranged to assist at the hearing was released, with the Applicant being assisted by his partner.
6. The Respondent did not require the Applicant to be cross examined.
7. During the course of submissions, the Applicant explained what had occurred and what were his concerns. There was an extensive discussion about the legislation, with the Applicant being provided with copies of the legislation and various decisions to which the Respondent had referred in its submissions. The Tribunal sought to assist the Applicant by explaining to him the effect of the submissions made by the Respondent and the role of the Tribunal. The Applicant was invited to respond. In this regard, there was discussion concerning the ability of the Applicant to make a separate application to the Respondent under the SIA, for a new licence in New South Wales, the Tribunal explaining that its role was limited to reviewing the application made under the MRA.
8. As necessary, I will refer to the submissions of the parties below.
9. At this point I should record that it was not contended by the Respondent that the Applicant had made any intentionally false or misleading statement in his application or that he had acted improperly in answering "True" to the statement set out above. Rather, in the absence of any evidence to the contrary, it appeared to the Tribunal that the Applicant genuinely believed he was not required to record the earlier revocation, the Applicant explaining that he understood the revocation operated for a period of 5 years after which he would be permitted to reapply for a licence in New South Wales.
10. Further, I should note that the question in the form the Applicant was required to complete to apply for mutual recognition is not in language that mirrors s 19(2)(e) of the MRA. The form uses the expression "licenses ... [that] have been cancelled or are currently suspended"[5] (emphasis added) whereas the expression in the MRA speaks of a "registration ... [that] is not cancelled or currently suspended" (emphasis added). [6]

1. There is no dispute that the Victorian licence was of a type capable of being recognised in New South Wales under the MRA.

1. Section 4(1) of the MRA provides the following definitions:

occupation means an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be granted. > > registration includes the licensing, approval, admission, certification (including by way of practising certificates), or any other form of authorisation, of a person required by or under legislation for carrying on an occupation.

2. Section 17(1) of the MRA states the mutual recognition principle in the following terms:

(1) The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation: > > (a) to be registered in the second State for the equivalent occupation; and > > (b) pending such registration, to carry on the equivalent occupation in the second State.

3. Section 17(2) provides that the mutual recognition principle is subject to an exception in the following terms:

(2) However, the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, so long as those laws: > > (a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and > > (b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.

4. That is, s 17 recognises a distinction between registration to carry out an occupation and laws that regulate the manner in which the occupation is carried out.
5. In the current proceedings, for the purpose of the MRA, the first State is the State of Victoria. The second State is the State of New South Wales. The local registration authority of the second State is the Respondent.
6. Section 19 sets out the requirements for lodging a notice with the local registration authority and the requirements for that notice. Section 19(2) relevantly provides:

(2) The notice must: > > (a) state that the person is registered for the occupation in the first State and specify that State; and > > ... > > (d) state that the person is not the subject of disciplinary proceedings in any State (including any preliminary investigations or action that might lead to disciplinary proceedings) in relation to those occupations; and > > (e) state that the person's registration (including interim deemed registration and automatic deemed registration) in any State is not cancelled or currently suspended as a result of disciplinary action; and > > ...

7. Section 19(6) allows the local registration authority to permit the notice given under s 19 to be amended after it is lodged.
8. The entitlement to registration and continued registration of an Applicant is found in s 20 of the MRA. Section 20(1) provides:

A person who lodges a notice in accordance with section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.

9. Once a notice is lodged, s 21 requires the following:

21 Action following notice > > (1) Registration mentioned in subsection 20(1) must be granted within one month after the notice is lodged with the local registration authority in accordance with section 19. > > (2) When granted, the registration takes effect as from the date the notice was lodged. > > (3) However, the local registration authority may, subject to this Part and within one month after the notice was lodged, postpone or refuse the grant of registration. > > (4) If the local registration authority neither grants the registration nor takes action in accordance with subsection (3) within the period of one month after the notice is lodged, the person is entitled to registration as mentioned in subsection 20(1) immediately at the end of that period and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved

10. The local registration authority may refuse the application circumstances prescribed by s 23(1). This section relevantly provides:

23 Refusal of registration > > (1) A local registration authority may refuse the grant of registration mentioned in subsection 20(1) if: > > (a) any of the statements or information in the notice as required by section 19 are materially false or misleading; or ... > > (b) any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or > > (c) the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.

Division 5 - General provisions > > 33 Disciplinary action > > (1) If a person's registration in an occupation in a State: > > (a) is cancelled or suspended; or > > (b) is subject to a condition; > > on disciplinary grounds, or as a result of or in anticipation of criminal, civil or disciplinary proceedings, then the person's registration in the equivalent occupation in another State is affected in the same way. > > (2) However, the local registration authority of the other State may reinstate any cancelled or suspended registration or waive any such condition if it thinks it appropriate in the circumstances. > > ... > > (4) This section has effect despite any other provisions of this Part.

Notice for mutual recognition must comply with s 19(2) of the MRA

1. Division 2 - Entitlement to registration for equivalent occupations of the MRA sets out the process for registration of an equivalent occupation.
2. The Respondent submits there is no entitlement to registration under s 20 of the MRA unless a valid notice is given under s 19(2). [7] Reliance is placed on the decision of Re Petroulias and the statement of the Chief Justice which I have set out above.
3. The Respondent then says of the present case:[8]

There are two requirements for a decision to refuse registration under s 23 of the MR Act based on a failure to satisfy s 19(2)(e) of the Act. First, the persons registration must be cancelled or currently suspended. Second, the cancellation or suspension must be as a result of disciplinary action. For the reasons that follow, the Applicant meets both these requirements.

4. There is no dispute that revocation of the 2005 NSW licence under s 26 of the SIA was, in effect, a cancellation for the purpose of the MRA. Nor is there a dispute that this was a result of disciplinary action, reference being made by the Respondent to the decision in Dib v Commissioner of Police (NSW) (Dib). [9]
5. Consequently, the Respondent submits, the application was properly refused.
6. In this regard, the written submissions of the Respondent, which refer to s 23 of the MRA, suggest that the application was properly refused on the basis that the notice was false or misleading in the sense used in s 23. This submission appears to accord with the approach taken by Davies JA in Re Petroulias,[10] His Honour there considering the entitlement to registration was subject to a power under s 22 of the MRA to postpone or refuse registration where a statement in the notice given under s 19 of the MRA was materially false or misleading.
7. In my opinion, a person is not entitled to registration under s 20 of the MRA unless the notice given for the purpose of s 19 of the MRA contains the required statements specified in s 19(2). This is the manner in which the MRA operates, s 20(1) entitling a person to registration where a notice is lodged "in accordance with section 19".
8. As explained by Kiefel CJ and Bell and Keane JJ in Victorian Building Authority v Andriotis (Andriotis): [11]

The MRA makes notice the basis for registration as a person entitled to carry on an occupation. It does not leave the person to do so unregulated by the second State. Section 33(1) of the MRA contemplates the possibility that the person's registration may be cancelled or suspended by a local registration authority in either State. It provides that if a person's registration is cancelled or suspended on disciplinary grounds, the persons registration in the equivalent location in any other state is affected in the same way.

9. Of the use of the word "may", found in s 20(2) of the MRA, their Honours continued:[12]

43. ... A particular context may make "may" a simple empowering word and indicate the circumstances in which the power is to be exercised. That is the case here. > > 44. Section 20(2) gives a local registration authority power to grant registration under the MRA on one "ground", the ground referred to in s 20(1), namely registration in the first State. No other ground is provided. There is no room for the operation of a discretion when a person notifies the authority of that registration. That is the scheme of the MRA. The word "may" must be understood in context to be the grant of a power to register on that one ground and no more.

10. Similarly, Nettle and Gordon JJ said (citations omitted):[13]

108. Section 20(1) expressly provides that the fact of registration in the first State is itself a sufficient ground of entitlement to registration, subject to the requirements in s 19. Section 20(2) provides that the local registration authority of the second State may grant registration on that ground. But the use of the word "may" in this context should not mislead. > > ... > > 113 A person registered for an occupation in the first State is entitled, after notifying the local registration authority of the second State, to be registered in the second State for an equivalent occupation. The entitlement to registration in the second State arises "after notifying" the second State authority. It does not require "applying to" that authority, only "notifying" it. > > ... > > 117. If the Applicant cannot truthfully make the statements required by s 19(2) or provide a true instrument or sufficient information evidencing their registration in the first State, they will be unable to lodge the notice in the form required, and no entitlement to registration in the second State will arise.

11. An application may be postponed or refused in circumstances permitted by ss 22 and 23. Otherwise, the application is to be dealt with as required by s 21 of the MRA if a notice complying with s 19(2) is provided.

When previous cancellation of registration prevents mutual recognition

1. A notice given under s 19 must contain a statement that "the persons registration ... in any State is not cancelled or currently suspended as a result of disciplinary action".[14]
2. The present proceedings raise the question of what is meant by the expression "is not cancelled or currently suspended".
3. In this regard, the Applicant notes:

(a) that the bond he incurred following a plea of guilty was imposed in 2008; > > (b) no conviction was recorded; and > > (c) although his license was revoked, by reason of the effluxion of time, he is again able to apply for a licence in New South Wales under the SIA. In this regard, as noted above, the SIA prevented any new application for a licence being made within a period of 5 years from the date when the bond was imposed.[15]

That is, the Applicant is no longer automatically prevented from holding a licence under the SIA.

1. Further, the Applicant has since been issued with the Victorian licence, which occurred in 2024.
2. In short, the Applicant said that his licence was cancelled a long time ago, that he now holds a licence in Victoria and that he should not be prevented from having the Victorian licence recognised in New South Wales under the MRA.
3. The Respondent, in written submissions, said that a revocation under the SIA is a cancellation for the purpose of s 19(2)(e) of the MRA. That is, the word "cancel" is synonymous with the word "revoked".[16] The Respondent continued:[17]

The use of the phrase "is not cancelled" in s 19(2)(e) indicates that it is a person's current (or latest) registration that must not be cancelled or suspended.

4. In making this submission, reference was made to Constantin 2022 and Constantin 2024. In the former case, Senior Member Puplick AM said:[18]

62. Paragraph 19(2)(e) appears unforgiving in its terms which are worth repeating (emphasis added): > > "state that the person's registration in any State is not cancelled or currently suspended as result of disciplinary action". > > 63. The operative word here is "IS". The word "is" is defined in the Macquarie Dictionary as being (emphasis added): > > "3rd person singular present indicative of be". > > 64. So, the question arises, is the Applicant's registration cancelled or currently suspended (irrespective of any cause)? That is, is it presently cancelled or suspended? > > ... > > 70. This application is sufficiently distinguishable from Dibb [sic], Kabir and Tran in that, in each of those cases, the licence that had been revoked/cancelled was the licence held currently by the applicant. Mr Dibb had a licence granted in 2005 which needed to be "transitioned" to new requirements in 2007 and was granted and then revoked in 2010 when it was determined that false statements had been made in the application. The like was also the case with Mr Kabir whose licence was granted in 2007 and cancelled in 2010. Mr Tran had a provisional licence granted in 2012, revoked in 2014 whereupon he obtained a licence in another State which was not mutually recognised. > > 71. Plainly paragraph 19(2)(e) contains no formulation which supports reading it as meaning "was" (i.e. in the past) cancelled or suspended. The choice of the word "is" by the Parliament imports a status in the present and a status which is continuing. > > 72. It is also appropriate to consider the effect of accepting the Respondent's position simply stated, that a previous cancellation of a licence results inevitably and absolutely in an applicant never being able to access the provisions of the MR Act. This would be regardless of how many aeons ago such cancellation happened, even for a matter no more than failure to attend retraining, which nevertheless amounts to disciplinary action and no matter how otherwise qualified an applicant might be. > > 73. It is hard to imagine that this was the intention of the nine parliaments which agreed to the mutual recognition scheme in the first place. > > 74. Equally, to accept that an applicant cannot avail themselves of the provisions of the mutual recognition scheme but can attain the same objective by making a fresh application in a second (third and subsequent) jurisdiction (Tran) - as indeed has been the case in this instance, would be to set aside the underlying philosophy and purpose of that scheme which is to avoid such unnecessary duplications. > > 75. Section 3 of the MR Act states that the "principal purpose" of the Act is: > > for the purpose of promoting the goal of freedom of movement of goods and service providers in a national market in Australia. > > 76. In the original Second Reading Speech introducing the Bill, the Minister stated: > > "The second principle is that, if a person is registered to carry out an occupation in one State or Territory, then he or she should be able to be registered and carry on the equivalent occupation in any other State or Territory: > > If someone is assessed to be good enough to practise a profession or occupation in one State or Territory, then they should be able to do so anywhere in Australia. > > A person will only need to give notice, including evidence of his home registration, to the relevant registration authority in another jurisdiction to be entitled immediately to commence practice in an equivalent occupation in that second State or Territory. Local registration authorities will be required to accept the judgment of their interstate counterparts of a person's educational qualifications, experience, character or fitness to practise." > > 77. That principal purpose stated in the MR Act and the second principle outlined by the Minister would surely be frustrated by reading paragraph 19(2)(e) as narrowly as the Respondent contends.

5. The approach of Senior Member Puplick was followed in the subsequent case of Constantin 2024. There, Emeritus Professor Senior Member Fairall said:[19]

25. The statutory requirement under paragraph (e) is that an applicant's registration in any State 'is not cancelled or currently suspended as a result of disciplinary action'. > > 26 The word 'is' has many functions and is patently ambiguous. The statutory context will determine whether the word applies to past events or actions. Neither the Commonwealth nor the state Interpretation Acts address this issue. An American commentator notes that the United States Dictionary Code provides "unless the context indicates otherwise ... words used in the present tense include the future as well as the present." The US Supreme Court has observed that this means that "the present tense generally does not include the past." Carr v. United States, 130 S. Ct. 2229, 2236 (2010). But this will depend on context. See, for example, Lansen v Minister for Environment and Heritage [2008 FCA 903 at [24]- [36], per Mansfield J., where the court held that a relevant provision expressed in the present tense was not to be read so as to exclude the application of a bilateral agreement which came into force before the Minister made a relevant decision.

6. Having considered the Commission of Police's submissions in the context of "a permanent disqualification from using the MR Act"[20] , Senior Member Fairall concluded:[21]

32 I agree with this analysis [referring to Constantin 2022]. By parity of reasoning, Mr Constantin's class 1AC licence revoked in August 2012 would have expired some time ago and so it cannot be regarded as 'cancelled' or 'suspended' for present purposes. > > 33. In my view, the MR Act does not authorise the practice adopted by the Respondent. The fact that at some point of time an authority in NSW revoked a qualifying licence upon which registration was or might have been sought under the MR Act, does not automatically disqualify an applicant for registration under the MR Act. The suggestion that the revocation of any licence for disciplinary action is a permanent disqualification for registration under the MR Act cannot be sustained.

7. The Respondent submits these cases are incorrectly decided insofar as they provide that a cancellation will cease to have effect for the purpose of s 19(2)(e) of the MRA when, but for the cancellation, the licence would otherwise have expired by a flexion of time.
8. The expressions "cancelled" and "suspended" used in s 19(2)(e) are references to a licence which has been cancelled or suspended in consequence of disciplinary proceedings. This subsection, together with subsections (d), (f) and (g), identifies circumstances which, if not able to be satisfied by an Applicant, prevent mutual recognition under the MRA.
9. Under the SIA, a licence may be suspended or revoked.[22] I accept the Respondent's submission that the word "revoke" used in the SIA is synonymous with the word "cancelled"[23] used in the MRA, including the reference to the decision of Deputy President Handley in Dib.[24]
10. As with subsections 19(2)(d), (f) and (g), subsection 19(2)(e) is concerned with the licensing status of the Applicant "in any State" at the time the application is made. This is confirmed by the use of the word "is" in each of these subsections. It is also confirmed by the use of the word "currently" in subsection 19(2)(e).
11. As made clear by the High Court in Andriotis, the MRA does not permit the second State to separately assess the good character or suitability of a person who applies under the MRA if the notice given under s 19 satisfies the specified criteria.[25] The exception is if the notice contains information that is materially false or misleading, in which case the local registration authority in the second State may refuse registration.[26]
12. However, that does not mean the conduct of an Applicant, in carrying on an occupation in the second State after registration under the MRA is unregulated. As stated by Kiefel CJ and Bell and Keane JJ:[27]

... Section33(1) of the MRA contemplates the possibility that the person's registration may be cancelled or suspended by a local registration authority in either State. It provides that if a person's registration is cancelled or suspended on disciplinary grounds, the person's registration in the equivalent occupation in any other State is affected in the same way.

13. That is, a decision to cancel, suspend or impose conditions in any State in which registration has been recognised under the MRA operates to cancel, suspend or impose conditions in every other State, including the first State where the original registration was made.
14. However, as provided by s 33(2) of the MRA, "the local registration authority of the other State may reinstate any cancelled or suspended registration or waive any such condition if it thinks it appropriate in the circumstances". That is, any "other State" may make a decision different to that made by the State which cancelled or suspended registration under s 33(1).
15. If this occurs, a person may be registered in one State but not the other.
16. Having regard to the above, the operation of the MRA can be summarised as follows:

(a) An Applicant for registration in the second State is entitled to mutual recognition under the MRA if they hold an equivalent registration in the first State and they make a true statement confirming the matters in s 19(2) of the MRA. > > (b) A State in which registration is obtained by recognition under the MRA retains the right to take disciplinary action against an Applicant concerning carrying on the occupation to which registration relates. > > (c) Where disciplinary action results in cancellation or suspension in the second State, such cancellation or suspension has the same effect in all States in which registration has been recognised under the MRA including in the State of original registration. > > (d) After cancellation or suspension by a State, all other States, including the State of original registration may "reinstate any cancelled or suspended registration".

17. The effect of these provisions is to permit each State to deal with disciplinary matters of those carrying on an occupation in that State's jurisdiction once registration by recognition under the MRA has occurred. This is apparent having regard to the provisions in subs 33(1) and (2) and subs 33(4) which provides:

This section has effect despite any other provisions of this Part.

18. What then of the position concerning a suspension or cancellation prior to the making of an application for recognition?
19. In my opinion, once registration is cancelled, an Applicant is prevented from obtaining recognition under the MRA until the State that cancelled or suspended registration has decided to issue a new licence or any existing suspension has ended.
20. My reasons are as follows:
21. As explained above, the power to take disciplinary action in a State is unaffected by registration under the MRA. As to the position at or before registration, s 19(2)(e) of the MRA makes clear the Act is concerned with the position "in any State" at the date on application for recognition is made. An existing cancellation or suspension in any State prevents recognition under the MRA as the relevant declaration that there is no such cancellation or suspension cannot be made.
22. Consequently, it is necessary to examine the State legislation regulating registration in the State in which cancellation or suspension has occurred to examine the status of the applicant under the relevant State law at that time.
23. Sections 24 and 25 of the SIA permit suspension or revocation of a license. In the case of suspension, there is a maximum period which can be imposed by the Respondent.[28]
24. Unless suspended, revoked or surrendered, a licence issued under the SIA, and each renewal thereof, remains in force for a maximum period of 5 years.[29]
25. Depending on the reason for revocation, the Respondent may be prevented permanently, or for an undefined period of time, from issuing a further licence to an applicant under the SIA.[30] The SIA also imposes various time restrictions on granting applications for a licence (or in the present case permitting the Applicant to reapply for a licence) by reference to various criteria including for conviction of offences or the imposition of a civil penalty.[31] In addition, the Respondent may impose a prohibition on making an application for a licence[32].
26. As is evident from the above, there is no fixed time after which revocation will cease to have effect. Further, even if any time limits of the type identified above (for example the prohibition on granting an application the following conviction of particular offences) has passed, a particular State may not, thereafter, grant a further licence because an Applicant does not satisfy the criteria specified in the State legislation.
27. It follows that it cannot be said the SIA has a time limit after which a cancellation ceases to have effect fixed by reference to the date a licence would otherwise have expired if not revoked. Rather, a revocation has the consequence that a person is not licensed in the State and cannot be licensed in the State until an application is made and granted by the respondent in accordance with the SIA.
28. This view of the SIA is consistent with the protective nature of licensing provisions and the sanctions which can be imposed including for specific and general deterrence.
29. Having reached this view, it would be a curious result if an Applicant could avoid the consequences of any sanction previously imposed by a State that prevented that person from carrying on a particular occupation by obtaining registration in another State and seeking mutual recognition rather than having to first seek reregistration in the State which impose the sanction. In this regard, but for the MRA, a cancellation or suspension prevents the carrying on of an occupation within a State unless and until a new registration is granted or the suspension is lifted or comes to an end.
30. Further, my view is consistent with the reservation to each State of the power to take disciplinary action and the reservation to each other State to take a contrary position concerning disciplinary action as recognised in s 33. In this regard, the MRA recognises that an individual is separately bound by the disciplinary action taken by each State concerning their ability to carry on a particular occupation in that State.
31. It follows that any inability to obtain mutual recognition under the MRA by reason of a previous cancellation is only removed by subsequent registration by the State which impose the cancellation.
32. Otherwise, it is necessary to apply for registration in each state in which registration is sought and the MRA does not operate to permit mutual recognition as a notice of meeting the requirements of s 19(2) cannot be given. In this way, as contemplated by s 33 of the MRA, once there has been cancellation each other State may determine whether registration is appropriate in that other State.
33. In the present case, the Applicant has not reapplied for a licence in New South Wales. As a result, for the purpose of the MRA, his licence is cancelled.

1. The Respondent's position is that the spent convictions legislation does not apply by reason of s 14(6) of the SIA. Further, and in any event, the fact of cancellation and the reasons therefore may be considered for the purpose of the MRA.
2. Section 7 of the Criminal Records Act 1991 (NSW) (CR Act):

7 Which convictions are capable of becoming spent? > > _(1) All convictions are capable of becoming spent in accordance with this Act, except the following - _ > > (a) convictions for which a prison sentence of more than 6 months has been imposed, > > (b) convictions for sexual offences, > > (c) convictions imposed against bodies corporate, > > (d) convictions prescribed by the regulations.

3. A finding of guilt, without conviction, is treated as a conviction for the purpose of the CR Act.[33]
4. As such, s 12 of the CR Act provides:

12 What are the consequences of a conviction becoming spent? > > _If a conviction of a person is spent - _ > > (a) the person is not required to disclose to any other person for any purpose information concerning the spent conviction, and > > (b) a question concerning the person's criminal history is taken to refer only to any convictions of the person which are not spent, and > > _(c) in the application to the person of a provision of an Act or statutory instrument - _ > > (i) a reference in the provision to a conviction is taken to be a reference only to any convictions of the person which are not spent, and > > (ii) a reference in the provision to the person's character or fitness is not to be interpreted as permitting or requiring account to be taken of spent convictions.

5. Section 12 operates to remove the requirement to disclose the fact of conviction and, as provided in s 12(c)(ii) when considering a person's fitness or character, is not permitted or required to be taken into account for the purpose of the relevant assessment.
6. However, s 14(6) of the SIA provides:

Section 12 of the Criminal Records Act 1991 does not apply in relation to an application for a licence.

7. Similarly, s 17(1) of the SIA provides that s 12 of the CR Act does not apply to an application to renew a licence under the SIA.
8. Accordingly, while a finding of guilt without conviction is treated as a conviction for the purpose of the CR Act and is capable of becoming spent, s 14(6) and 17(1) of the SIA expressly removes the consequences that would otherwise flow from s 12 of the CR Act in assessing a person's application for a licence or renewal thereof. That is, for the purpose of the SIA, the conviction is reportable and a matter of which account can be taken.
9. The Commonwealth Crimes Act does not affect this position. Section 85ZV of the Commonwealth Crimes Act relevantly provides:

Spent convictions > > ... > > (2) Subject to Division 6, but despite any other Commonwealth law or a Territory law, if a person's conviction of a State offence or a foreign offence is spent, the person is not required: > > (a) in any Territory--to disclose to any person, for any purpose, the fact that the person has been charged with, or convicted of, the offence; or > > (b) in any State or foreign country--to disclose to any Commonwealth authority in that State or country, for any purpose, the fact that the person has been charged with, or convicted of, the offence. > > (3) Subject to Division 6, but despite any other Commonwealth law or any Territory law, where: > > (a) a person was convicted of a State offence; > > (b) subsection (2) does not apply to the person in relation to the offence; and > > (c) under a law in force in that State, being a law dealing with the disclosure or taking into account of spent convictions (however described in that law) it is lawful for the person, in particular circumstances or for a particular purpose, not to disclose the fact that the person was charged with, or convicted of, the offence; > > the person is not required, in corresponding circumstances or for a corresponding purpose: > > (d) in a Territory--to disclose the fact that the person was charged with, or convicted of, the offence; or > > (e) in a State or foreign country--to disclose that fact to any Commonwealth authority in that State or country.

10. For the purpose of the SIA, the conviction for the State offence is not spent. Consequently, sub s 85ZV(2) does not apply. Otherwise, under the law in force in New South Wales (namely s 14 and 17 of the SIA), it is not lawful under the SIA for the person in that particular circumstance or for that particular purpose not to disclose the fact of the conviction. Consequently, subs 85ZV(2) has no application.
11. The fact that the powers being exercised under the MRA are in respect of Commonwealth legislation, the States having made a reference under s 51(xxxvii) of the Constitution (Cth),[34] does not affect this position. That is because cancellation by a State of a licence for disciplinary reasons, is action taken by that State under the local law. That is so whether the licence is issued by that State under its local law or recognised by that State under the MRA.
12. As explained above, that is the effect of s 33 of the MRA.

1. The next issue to deal with is the issue of whether the cancellation is "functus officio".
2. In Constantine 2022 the Tribunal said:

68. The class 1AC Security Licence which was revoked in August 2012 would by now have expired without renewal and so it cannot be regarded as "cancelled" or "suspended" in the present. It may have been cancelled or suspended until it expired, but that would have been some years ago. As an authorisation it is functus officio.

3. The Respondent says that Tribunal in Constantine 2022 was in error in reaching this conclusion, the concept of functus officio referring to a decision maker who has made a decision and completed the function they were required to perform.
4. I agree with the Respondent that the concept has no relevance in determining the issues in the present case or the status the revocation of the Applicant's 2005 NSW licence has for the purpose of s 19(2)(e) of the MRA.
5. In CBI Constructors Pty Ltd v Chevron Australia Pty Ltd, the Court of Appeal succinctly stated the concept of functus officio as follows (citations omitted):[35]

The consequence of finality insofar as it affects the authority or jurisdiction of the arbitrator is expressed by the common law in the Latin phrase 'functus officio'. The term 'functus officio' in this context is descriptive of the completion or exhaustion of the authority of the arbitrator to decide. As with any conclusion of functus officio, it is reached by close examination of the particular circumstances, and the nature of the power, function or duty in question.

6. As is evident from this statement, the concept relates to the completion or exhaustion of authority to decide, not whether a grant of permission to undertake a particular activity has ceased, expired or would have expired by effluxion of time.

Ability to reapply for licence in New South Wales

1. The final matter to deal with concerns the ability of the Applicant to now reapply for a licence in New South Wales under the SIA.
2. As noted above, in 2008 the Applicant pleaded guilty for the offence of stalking and intimidation and was placed on a bond, with no conviction being recorded.
3. Section 16(1)(b) of the SIA requires the Respondent refuse to grant an application for a licence if satisfied that the Applicant "has within the period of 5 years before the application for the licence was made, being found guilty (but with no conviction being recorded) by a Court of New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of license sought, whether or not the offence is an offence under New South Wales law".
4. The Respondent accepted the period of 5 years had expired. Consequently, the mandate preventing grant of an application for a period of 5 years did not prevent the Applicant reapplying for a licence in New South Wales.
5. However, the fact that this limitation on grant is no longer operative does not mean that the cancellation of the earlier licence has ceased to have effect. The SIA does not provide for such a consequence. Rather, a new application may be lodged which must be assessed under the SIA and granted if appropriate. Until this occurs, the fact remains that the Applicant's licence in New South Wales is cancelled.
6. As discussed with the Applicant during the hearing, the grant of a licence under the SIA is not a matter which the Tribunal has jurisdiction to determine in this review application. The Tribunal's authority is limited to determining issues concerning whether the Applicant's Victorian licence should be recognised in New South Wales under the MRA.
7. Whether or not a licence should now be issued under the SIA is a matter to be determined by the Respondent in the exercise of her powers under that Act, any rights of review in connection with any decision that might be made by the respondent in connection therewith to be dealt with by the New South Wales Courts or as permitted by Division 4 Review of licensing decisions of the SIA.

1. It follows from the above that the Applicant is not entitled to registration under the MRA.
2. The decision of the Respondent is affirmed.

Mr A Grey, Office of General Counsel NSW Police Force

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[1] [2005] 1 Qd R 643; [2004] QCA 261.

[2] Respondent's submissions paragraph [22].

[3] Constantin v Commissioner of Police (NSW) 2022 AATA 1333 at [68].

[4] Constantin v Commissioner of Police (NSW) [2024] AATA 1294 at [32].

[9] [2017] AATA 852 at [25].

[10] Re Petroulias at [53] and following.

[11] 268 CLR 168; [2019] HCA 22 at [32]

[13] Andriotis at [108], [113] and [117].

[15] SIA s 16(1)(b).

[18] [2022] AATA 1333 at [62]- [64], [70]-[77].

[19] Constantin 2024 at [25]-[26].

[21] Constantin 2024 at [32]-[33].

[22] SIA ss 26 and ss 26.

[23] Respondent's submissions paragraph [22].

[25] Andriotis per Kiefel CJ, Bell and Keane JJ at 23 and following.

[26] MRA s 23(1).

[29] SIA s 24.

[30] see eg SIA s 15(1)(b)-mandatory refusal if registrable person and s 14A of the Child Protection (Offenders Registration) Act 2000 (NSW) (which prescribes the length of reporting obligations which may be for "the remainder of the person's life") and SIA s 15(1)(f)(i)- where a person is not a fit and proper person. These provisions operate to require mandatory revocation of a licence: see SIA s 26(1A).

[31] SIA s 16.

[32] SIA s 16B.

[35] [2023] WASCA 1 at [86].